Summary:
The claimant suffers from asbestosis related to his work at the W.R. Grace
zonolite mine. He filed an occupational disease claim in 1990 and it was
accepted by CNA, which insured W.R. Grace. In July 1999 claimant was hospitalized
with heart-related problems. CNA has denied payment for his hospitalization
and follow-up care on the ground that his condition and care were unrelated
to his asbestosis.

Held:
The claimant's heart condition, July 1999 hospitalization, and his follow-up
care were causally related to his asbestosis. CNA is liable for his medical
expenses. Further, it is liable for attorney fees and a penalty since
its denial of liability was unreasonable.

Topics:

Causation:
Medical Condition. A workers' compensation insurer is liable
only for medical conditions which are caused by the claimant's industrial
accident or occupational disease.

Proof:
Conflicting Evidence: Medical. The treating physician's opinions
are entitled to greater evidentiary weight than the opinions of a non-treating
physician, at least where all other factors are equal.

Proof:
Conflicting Evidence: Medical.Where the treating
physician has greater expertise in the treatment of the medical condition
at issue than other physicians rendering opinions in the case, the treating
physician's opinions are entitled to even greater deference than required
under the treating physician rule.

Penalties:
Insurers. While conflicting medical opinions ordinarily raise
issues of fact which are appropriately submitted to the Workers' Compensation
Court for resolution, the fact that the insurer has obtained an IME
opinion supporting its denial does not preclude a finding that its denial
was unreasonable. An insurer must fairly and reasonably evaluate all
facts and opinions with respect to medical issues.

Penalties:
Insurers. An insurer acts unreasonably and is liable for a
penalty, § 39-71-2907, MCA (1989), with respect to denied medical benefits
where the treating physician finds a causal relationship between the
medical condition treated and the industrial injury or occupational
disease and where the physician expressing a contrary opinion was hired
by the insurer, was provided with only selected records regarding the
claimant's treatment, is less qualified than the treating physician,
and relies on a medical test of questionable quality and value.

Constitutions,
Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-2907,
MCA (1989). An insurer acts unreasonably and is liable for
a penalty, § 39-71-2907, MCA (1989), with respect to denied medical
benefits where the treating physician finds a causal relationship between
the medical condition treated and the industrial injury or occupational
disease and where the physician expressing a contrary opinion was hired
by the insurer, was provided with only selected records regarding the
claimant's treatment, is less qualified than the treating physician,
and relies on a medical test of questionable quality and value.

Attorney
Fees: Medical Benefits. An insurer acts unreasonably and is
liable for attorney fees pursuant to § 39-71-612, MCA (1989), with respect
to denied medical benefits where the treating physician finds a causal
relationship between the medical condition treated and the industrial
injury or occupational disease and where the physician expressing a
contrary opinion was hired by the insurer, was provided with only selected
records regarding the claimant's treatment, is less qualified than the
treating physician, and relies on a medical test of questionable quality
and value.

Constitutions,
Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-612,
MCA (1989). An insurer acts unreasonably and is liable for
attorney fees pursuant to § 39-71-612, MCA (1989), with respect to denied
medical benefits where the treating physician finds a causal relationship
between the medical condition treated and the industrial injury or occupational
disease and where the physician expressing a contrary opinion was hired
by the insurer, was provided with only selected records regarding the
claimant's treatment, is less qualified than the treating physician,
and relies on a medical test of questionable quality and value.

¶1
The trial in this matter was held in Kalispell, Montana, on July 13, 2004.
The petitioner was present and represented by Mr. Tom L. Lewis. The respondent
was represented by Mr. David M. Sandler.

¶2 Exhibits:
Exhibits 1 through 25 were admitted into evidence. Rulings on objections
to particular exhibits were rendered orally. Exhibits to which there were
relevancy objections were reviewed to determine if relevant. They were
admitted and were considered to the extent that they were relevant.

¶3 Witnesses
and Depositions: Dr. Alan C. Whitehouse, Dr. Brent P. Pistorese, and
Sandra Mayernik testified at trial. In addition, the parties submitted
the depositions of Drs. Whitehouse and Pistorese to the Court for its
consideration.

¶4 Issues
Presented: The Court restates the issues as follows:

¶4a Whether
the petitioner is entitled to payment of the medical expenses itemized
in Exhibit 15.

¶4b Whether
the petitioner is entitled to a 20% penalty.

¶4c Whether
the petitioner is entitled to attorney fees and costs.

¶5 Having considered
the Pretrial Order, the testimony presented at trial, the demeanor and
credibility of the witnesses, the depositions and exhibits, and the arguments
of the parties, the Court makes the following:

FINDINGS
OF FACT

¶6 The petitioner
in this case is Ronald Doubek and I will hereinafter refer to him as "claimant."
He is 69 years old.

¶7 The claimant
worked for W.R. Grace and its predecessor companies at its Libby mine
from approximately 1953 to 1960 and again from 1965 to 1990. (Ex. 2 at
9.)

¶8 On or about
May 31, 1990, the claimant was diagnosed as suffering from asbestos-related
lung disease and filed an occupational disease (OD) claim. CNA Insurance
Company (CNA) insured W.R. Grace at the time in question and accepted
liability for his claim. (Pretrial Order, Uncontested Fact 2; Exs. 1 and
2.)

¶9 In 1993
the claimant and CNA entered into a compromise settlement of his claim.
The settlement provided for a lump-sum payment of $18,500 in satisfaction
of his claim for indemnity benefits. (Ex. 3.) It reserved future medical
and hospital benefits (id.), thus preserving his entitlement
to seek medical benefits for his OD.

¶10 The present
case arises out of medical expenses the claimant incurred in connection
with treatment for a heart condition he developed in 1999. CNA has denied
liability for the heart condition, asserting that it is not causally related
to the claimant's asbestosis. The medical expenses for which reimbursement
is sought total $24,301.82. (Petitioner's Proposed Findings of Fact, Conclusions
of Law and Judgment, ¶ 8; Ex. 15.)

¶11 Two doctors
testified in this proceeding - Dr. Alan C. Whitehouse and Dr. Brent P.
Pistorese. Both are pulmonologists and both testified by way of deposition
and at trial.

¶12 The medical
history as pertains to the present controversy begins on March 11, 1999,
when the claimant was hospitalized at the Deaconess Medical Center in
Spokane, Washington, for shortness of breath and discomfort in his left
chest. (Ex. 20 at 19.) Dr. Whitehouse began treating the claimant
at that time and has been his chief treating physician since that time.

¶13 Dr. Whitehouse
is a board certified pulmonologist who has been treating Libby asbestosis
cases for approximately three decades. As I noted in Fellenberg v.
Transportation Ins. Co., 2004 MTWCC 29, ¶ 16, the predominant
asbestos in Libby is tremolite, which has amphibole fibers. Amphibole
fibers are different from the more common, less dangerous serpentine fibers
of chrysolite and other types of asbestos. Amphibole fibers are needle
like, lodge in the lung, and over a period of years, migrate or penetrate
through the lungs into the pleura, which is the membrane surrounding the
lungs. Dr. Whitehouse has evaluated approximately 500 patients from Libby
and maintains and tracks data concerning those patients. He has also treated
asbestosis patients from the Hanford, Washington, nuclear facility.

¶14 Upon admission
to the hospital on March 11th, the claimant was suffering from
pleural effusions, which are an accumulation of fluid between the two
layers of pleura in the chest cavity. The pleural effusions were caused
by the claimant's underlying asbestosis. (Whitehouse Dep. at 6.)

¶15 The fluid
in the claimant's chest was surgically drained. (Id. at 9 and
Ex. 20 at 12.) The claimant was further treated with supplemental oxygen,
steroids, and diuretics. (Whitehouse Dep. at 6, 9.) Upon discharge he
was placed on Prednisone, which is a steroid. However, on June 10, 1999,
he was instructed to taper his Prednisone over four weeks so that at the
end of the four weeks his Prednisone usage would end. (Ex. 4 at 23.)

¶16 On July
13, 1999, the claimant was re-hospitalized for congestive heart failure.
(Ex. 4 at 22.) Congestive heart failure is a general term for the
inability of the heart to adequately circulate blood throughout the body.
However, in this case Dr. Whitehouse used the term to mean left ventricle
failure. (Whitehouse Dep. at 32.) The left ventricle pumps oxygenated,
arterial blood to the aorta and thence to the arteries throughout the
body.

¶17 The claimant's
presenting symptoms on July 13, 1999, were increasing difficulty with
breathing; a weight gain of eighteen pounds due to peripheral edema (fluid
retention); and a feeling of soreness and tightness in his chest. (Ex.
4 at 22.) A chest x-ray also showed pulmonary edema (id.), which
is an abnormal accumulation of fluid in the lungs. Dr. Whitehouse's
impressions upon admission were:

¶18 In a July
13, 1999 letter, Dr. Whitehouse wrote to Dr. Brad Black, a Libby physician
who treated the claimant locally. Dr. Whitehouse laid out his reasons
for hospitalizing the claimant:

I admitted
Ron Doubek to the hospital at Deaconess today. His x-ray, I thought,
looks like occurrence of pulmonary edema bilaterally with some degree
of pleural effusion and the clinical exam suggested that as well. Actually,
since the last time I saw him he had gained 18 pounds, which I think
is all fluid. I admitted him to Deaconess for diuresis and I will keep
you informed.

(Id.
at 49.)

¶19 Upon hospitalization,
the claimant was seen by a hospital resident training in cardiology. The
resident's impression was that the claimant's history "seems consistent
with an acute myocardial infarction." (Id. at 21; Whitehouse
Dep. at 51.) Dr. Whitehouse testified that he did not think the resident
"understood what he was dealing with." (Id.) Indeed, heart attack
(myocardial infarction) was later ruled out.

¶20 An echocardiogram
(echo) was done on July 14, 1999. (Ex. 20 at 1.) A cardiologist performed
the test. His most significant finding was a markedly enlarged left ventricle
with severely reduced left ventricular systolic function and an overall
ejection fraction "visually estimated to be in the 15-20% range." (Id.)
According to Dr. Pistorese, an ejection fraction of 60% is considered
normal. (Pistorese Dep. at 25.) Dr. Whitehouse testified that 55% to 60%
is normal. (Whitehouse Trial Test. and see Whitehouse Dep. at
44.)

¶21 In addition,
the cardiologist reported that the left atrial was enlarged. On the right
side of the heart, he found both chambers were of normal size but right
ventricular systolic function was reduced. (Ex. 20 at 1.) The right ventricle
pumps blood through the pulmonary artery to the lungs, where it is oxygenated.
Pulmonary artery systolic pressure (from the right ventricle) was estimated
to be 45 millimeters mercury (mm), which the cardiologist characterized
as "mild pulmonary hypertension." (Id.) Systolic pressure is
the pressure when the ventricle contracts. Dr. Pistorese testified that
normal pressure is 30 and agreed with the cardiologist's characterization
of 45 mm as "mild." Dr. Whitehouse characterized pressure of 45 mm
as "moderate" and I note that a reading of 45 is 50% higher than normal.

¶22 The cardiologist
who did the echo reported the study as only "fair." (Id.) Echos
use ultrasound (high frequency sound waves) to image the heart. The procedure
is non-invasive, i.e., it is performed using a wand which is placed against
the outside of the chest. Dr. Whitehouse testified that good echos are
more difficult to obtain in patients with lung disease because the diseased
lung is between the chest wall and the heart,(1)
thus "you're not getting a clean view frequently of the heart."(2)
(Whitehouse Dep. at 45-46.) At trial he testified that lung disease may
obscure ultrasound heart images, which may explain why the quality of
the test was characterized as only "fair." Moreover, the measurements
of both the ejection fraction and pulmonary pressure were based on visual
estimates of the cardiologist and thus were imprecise.

¶23 At the
time of the claimant's July 1999 hospitalization, Dr. Whitehouse believed
that the claimant suffered from both cor pulmonale and cardiomyopathy.
(Id. at 74.)

¶24 Cardiomyopathy
is heart failure involving the left ventricle. The left ventricle pumps
arterial blood to the aorta and thence to the body. Thus, cardiomyopathy
involves an inability of the left ventricle to pump sufficient blood to
the aorta and thence to the body.

¶25 Cor pulmonale
is a form of congestive heart failure of the right ventricle of the heart.
(Id. at 8.) As noted earlier, the right ventricle pumps blood
through the pulmonary artery to the lungs. The hallmarks of cor pulmonale
are pulmonary hypertension, low oxygen levels in the blood, and edema
(excessive water retention in the tissues). (Id.) Dr. Whitehouse
testified that cor pulmonale "[a]lmost always is related to lung disease
and pulmonary hypertension." (Id. at 68.) In Libby asbestosis
cases, the pulmonary hypertension and cor pulmonale is due to the heart
pumping against increased pressure due to the asbestosis. (Whitehouse
Trial Test.)

¶26 Cardiomyopathy
has numerous causes, the most common of which is ischemia. Other causes
include alcoholism, chemotherapy, other drug therapy, certain viral infections,
pregnancy, and "vasculitis or inflammatory disease of muscles." (Pistorese
Dep. at 13 and Trial Test.) It is rarely caused by lung disease.

¶27 CNA denied
liability for the claimant's July 1999 hospitalization and follow-up care
on the ground that it was unrelated to his asbestosis. Sandy Mayernik,
the current CNA adjuster in this case, testified that liability for the
hospitalization was not denied until October 11, 2002, based on reports
of Dr. Pistorese and Dr. T. Shull Lemire. I find the history leading up
to the denial, indeed the insurer's entire handling of the case, disturbing.
The history of the claim, as presented to the Court, is set out in the
following paragraphs.

¶28 On February
16, 2000, CNA's adjuster requested a medical opinion concerning whether
the claimant's heart condition in the summer of 1999 was related to his
asbestosis. (Ex. 21.) It is clear that by this date it was aware of the
claimant's July 1999 hospitalization and its potential liability for his
care.

¶29 CNA's request
for a medical opinion was forwarded to Dr. Lemire, a pulmonologist practicing
in Missoula. He reviewed medical records for the period of February 22,
1999 to September 1, 1999. On March 20, 2000, he replied:

Those records
deal with his shortness of breath caused by asbestosis, as well as a
severe diffuse cardiomyopathy. His heart problem of 1999 is not a direct
result of the asbestosis and is more likely due to some other cause
- which is unknown at the present time.

(Ex. 7 at 2.)
I note that the request for his opinion did not ask the broader question
as to whether the claimant's hospitalization or any of the expenses associated
with his hospitalization were related to his asbestosis.

¶30 In October
2000, CNA referred the matter to legal counsel. (Mayernik Trial Test.)
On October 16, 2000, counsel wrote to Dr. Lemire and asked him to specifically
address "whether the heart problem of 1999 was the indirect result of
asbestosis." (Ex. 7 at 3.) Dr. Lemire replied on November 7, 2000.
In that reply, he did not question the diagnosis of cardiomyopathy but
merely addressed whether cardiomyopathy may be caused by asbestosis. Based
on literature search he concluded, "I still cannot say that his cardiomyopathy
is a result of asbestosis." (Ex. 7 at 1.)

¶31 No denial
ensued. Rather, the next correspondence was on January 22, 2001, when
the claimant's attorney wrote to CNA's adjuster and requested payment
for the cardiologist's bills from July 17, 1999 through August 28, 2000.
(Ex. 9.)

¶32 Receiving
no reply to his January 22, 2001 letter, on April 4, 2001, the claimant's
attorney again wrote to CNA's adjuster and requested payment of the cardiologist's
bill. (Ex. 10.)

¶33 On July
11, 2001, Dr. Whitehouse wrote to the claimant's attorney regarding the
cardiology bills. He wrote:

Ron Doubek
tells me he has some bills from cardiologists relative to his hospitalization
in 1999, at Deaconess. That hospitalization was related to a benign
pleural effusion from his asbestosis along with some cor pulmonale and
I believe his cardiac problems are related to his asbestosis.

(Ex. 4 at 12.)

¶34 On August
8, 2001, the claimant's attorney wrote to CNA's adjuster, this time enclosing
an unpaid bill for the claimant's July 1999 hospitalization in the amount
of $18,212.82. (Ex. 11.) He also enclosed a copy of Dr. Whitehouse's July
11, 2001 opinion letter and demanded payment for the outstanding medical
expenses. (Id.)

¶35 On August
20, 2001, the claimant's attorney sent CNA additional records he had received
from Dr. Whitehouse concerning the claimant's July 1999 hospitalization.
(Ex. 12.) In his letter, the claimant's counsel noted:

The medical
creditors have been patient. They are now pressing for payment of the
medical care in question.

(Id.)

¶36 CNA's adjuster
did not respond to the January, April, or August 2001 letters from the
claimant's counsel.

¶37 Sometime
prior to January 7, 2002, attorneys for CNA requested Dr. Pistorese to
address whether cardiomyopathy is related to asbestosis. They furnished
the doctor with only some of the available records. The fact that only
selective records were furnished to Dr. Pistorese is disturbing and figures
in my ultimate determination that the insurer has acted unreasonably in
denying the claimant's claim for medical expenses related to his July
1999 hospitalization. (Pistorese Dep. at 5-6.) It is also significant
that Dr. Pistorese was not asked to review the broader question as
to whether the claimant's hospitalization and at least some of his medical
expenses were related to his asbestosis.

¶38 Dr. Pistorese
replied on January 7, 2002, stating that he had reviewed the materials
provided to him and some medical literature and had concluded that "it
is far more likely that his cardiomyopathy was neither the direct or indirect
result of asbestos exposure but due to ischemic cardiac disease." (Ex.
25 at 1.)

¶39 In his
deposition and trial testimony, Dr. Pistorese disavowed his opinion that
the claimant's heart condition was ischemic. He testified that his opinion
in that regard had been based on incomplete medical records and was erroneous.

¶40 Still,
CNA did nothing with the claim. On June 28, 2002, the claimant's attorney
again wrote its adjuster asking if it had paid the medical bills. (Ex.
13 at 5.) Receiving no reply other than the fact that the adjuster in
charge of the claim had changed (id. at 4), the claimant's attorney
wrote to the new adjuster on September 10, 2002, again demanding payment
for hospital and medical bills related to the claimant's July 1999 hospitalization.
(Id. at 1.) He enclosed yet another letter from Dr. Whitehouse,
dated August 21, 2002 (Ex. 4 at 10), stating that the claimant's hospitalization
in 1999 was for pleural effusions and cor pulmonale that was caused by
his asbestosis. (Id.)

¶41 Finally,
on October 11, 2002, CNA replied to the claimant's demand for payment
of his July 1999 hospitalization and related medical bills, writing:

I am writing
to you regarding your client, Ronald Doubek. I apologize for the
delay in responding.

A review
of the medical records from independent medical examiners and consultation
with legal counsel concludes that treatment of his heart condition is
unrelated to his work exposure at WR Grace and is therefore denied.
If you would like to discuss this matter further please do not hesitate
to contact me.

(Ex. 19 (italics
added).)

¶42 There the
matter languished. No further opinions were requested by CNA until shortly
before Dr. Pistorese's deposition was taken on April 28, 2004. Shortly
before the deposition was taken, CNA furnished him with more complete
medical records. As noted earlier, the additional records led him to change
his opinion concerning ischemic heart disease.

¶43 Nonetheless,
in his trial and deposition testimony, Dr. Pistorese stuck to his opinion
that the claimant's heart condition in July 1999 was cardiomyopathy, not
cor pulmonale, and that it was not related to his asbestosis.

¶44 In his
testimony Dr. Whitehouse opined that the claimant's primary heart problem
in July 1999 was cor pulmonale caused by his asbestosis. He also testified
that had the claimant's problem been merely cardiomyopathy it could have
been treated without hospitalization. According to Dr. Whitehouse, it
was his heart condition in combination with the asbestosis that put the
claimant over the edge and required hospitalization.

¶45 I am persuaded
by Dr. Whitehouse's opinions and find that the claimant's hospitalization
in July 1999 was caused primarily by his asbestosis and that his congestive
heart failure in July 1999 was primarily cor pulmonale, although I suspect
some of his heart failure may have been due to cardiomyopathy. My rationale
is as follows:

¶46 The most
common cause of cardiomyopathy is ischemia, which is a lack of sufficient
blood supply to the heart muscle. However, coronary angiography, along
with a thalium study, showed adequate blood supply to the right side of
the claimant's heart and ruled out ischemia as the cause of the claimant's
cardiac insufficiency. Indeed, Dr. Batkoff, the cardiologist who consulted
on the claimant's case during his hospitalization and followed the claimant
for a time after his discharge, noted on September 1, 1999, that he suspected
the claimant's heart condition was "nonischemic in nature." (Ex. 6 at
5.) Both Drs. Whitehouse and Pistorese agree that the claimant was not
suffering from ischemic cardiomyopathy.

¶47 There are
numerous other known causes of cardiomyopathy. Dr. Pistorese was unable
to identify any of the other known causes as responsible for the claimant's
heart failure and ultimately concluded that he was suffering from "idiopathic"
cardiomyopathy. "Idiopathic" is a silver dollar term for "don't know."
The "don't know" is significant in this case since the testimony by both
Drs. Whitehouse and Pistorese established that the cause of cardiomyopathy
can be identified in an overwhelming number of cases. Thus, idiopathic
cardiomyopathy is uncommon, like finding a zebra in a herd of horses.

¶48 Another
fact argues against cardiomyopathy as the sole cause of the claimant's
1999 heart problems. The testimony of both Drs. Whitehouse and Pistorese
establish that most patients suffering from cardiomyopathy do not improve.
Dr. Pistorese testified that patients suffering from cardiomyopathy related
to chemotherapy and other drug therapy may improve. (Pistorese Dep. at
14.) The claimant was suffering from none of the causes Dr. Pistorese
identified. Nonetheless, the claimant's heart condition improved remarkably
following his hospitalization. Indeed, his ejection fraction as measured
subsequent to his July 1999 hospitalization was 30%, double the measurement
recorded in July 1999. His overall cardiac function improved to the point
that he returned to a fairly normal, albeit sedentary, life.

¶49 This brings
me to another point favoring Dr. Whitehouse's opinions. Dr. Pistorese's
opinion concerning cardiomyopathy hinged almost entirely on the July 14,
1999 echocardiogram. Dr. Whitehouse testified that the 15% ejection fraction
was suspect in the first place. He opined that 15% is incompatible with
life. In view of the marked increase in the fraction upon the second echo,(3)
the cardiologist's rating of the first echo as only fair, and
Dr. Whitehouse's uncontradicted testimony concerning the difficulty in
obtaining clear ultrasound images of the heart in patients suffering from
asbestosis, I am unconvinced that the first July 14, 1999 echo was accurate,
especially in the assessment of the left ventricle ejection fraction.

¶50 There are
further reasons for preferring Dr. Whitehouse's opinions. First, and foremost,
Dr. Pistorese admittedly does not understand the differences between amphibole
and serpentine asbestosis disease. (Trial Test.) As described by Dr. Whitehouse,
amphibole asbestosis is different from and more malignant than serpentine
asbestosis. Second, Dr. Whitehouse has far more experience than Dr. Pistorese
in treating Libby asbestosis cases, including secondary cor pulmonale.
Dr. Whitehouse testified, and I have no reason to disbelieve, that he
has treated hundreds of patients with cor pulmonale. (Whitehouse Dep.
at 22.) Third, despite a frivolous contention made at trial by CNA's attorney
that Dr. Whitehouse is not a treating physician for purposes of the issues
in this case, Dr. Whitehouse in fact has been the claimant's treating
physician since March 1999, was his admitting physician for his July 1999
hospitalization, followed the claimant throughout his July 1999 hospitalization,
and has treated the claimant ever since. Fourth, Dr. Pistorese's opinions
were initially in response to carefully framed questions put to him by
CNA without the benefit of complete medical records and without the benefit
of even being asked the critical question, which was whether the claimant's
July 1999 hospitalization was attributable to his asbestosis. Fifth, Dr.
Pistorese never saw and never treated the claimant. While that may not
be significant in some cases, I am persuaded it is significant in this
case. In particular, I note Dr. Whitehouse's testimony that upon stethoscopic
examination of the claimant in July 1999, he noted a "gallop" in the claimant's
heart beat. (Whitehouse Dep. at 35.) A "gallop is a soft sound that occurs
after valve closures that's associated with heart failure." (Id.)
The gallop he heard in July 1999 was on the right side (id.),
which is consistent with right ventricular failure and cor pulmonale.

¶51 I therefore
find that the claimant's hospitalization in July 1999, his heart condition
at that time, and his follow-up care with respect to his heart condition
were causally related to his asbestosis. CNA is therefore liable for his
medical bills associated with that hospitalization and treatment.

¶52 I further
find that CNA has unreasonably delayed and unreasonably denied payment
for the claimant's medical bills. Its failure to timely respond to the
demands of the claimant's attorney for payment of medical bills and its
three-year delay in denying liability for the bills is incomprehensible
and inconsistent with its duty to promptly investigate and pay benefits.
Its feeding of selected medical records to its medical experts and the
narrow questions it put to them is inconsistent with any objective, reasonable
investigation into liability for the medical bills. Finally, CNA failed
to take the treating physician rule, as well as the weaknesses of its
cardiomyopathy contention, properly into account. Indeed, at trial it
denied altogether that Dr. Whitehouse is a treating physician, a denial
that is frivolous. The fact that Dr. Whitehouse called in other specialists,
i.e., cardiologists, to assist in the evaluation and treatment of the
claimant, does not take away from the fact that he was the claimant's
admitting physician and his primary physician throughout. It is well established
under Montana law that a treating physician's opinions are entitled to
greater weight than a non-treating physician, Wall v. Nat'l Union
Fire Ins. Co., 1998 MTWCC 11; Waite v. State Compensation Ins.
Fund, 1998 MTWCC 47. I have held that, unless there are cogent reasons
for preferring the opinions of non-treating physicians, the treating physician's
opinions will prevail. Id. In this case, the principal ground
for Dr. Pistorese's opinion was the July 14, 1999 echo, and there were
multiple, cogent reasons for doubting the accuracy of that test and the
resulting diagnosis of cardiomyopathy. Moreover, in relying on Dr. Pistorese's
opinions, CNA similarly ignored the fact that the tremolite asbestos in
Libby is different from other asbestos and that Dr. Pistorese did not
know the difference.

CONCLUSIONS OF LAW

¶53 This case
is governed by the 1989 version of the Montana Occupational Disease Act
since that was the law in effect at the time the claimant's occupational
disease was diagnosed and he submitted a claim for compensation. Bouldin
v. Liberty Northwest Ins. Co., 1997 MTWCC 8, and see Buckman
v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380,
382 (1986).

¶55 The claimant
has satisfied his burden of proof. I have found as a matter of fact that
the predominant condition leading to his July 1999 hospitalization was
cor pulmonale and that the condition was caused by his asbestosis. CNA
is therefore liable for the medical expenses set forth in Exhibit 15.

¶56 CNA is
also liable for both attorney fees and a penalty. Those awards are premised
on my finding that it acted unreasonably in adjusting the claim for medical
benefits. I have found as a matter of fact that the insurer not only unreasonably
delayed processing of the claim but in the end failed to reasonably evaluate
it.

39-71-612. Costs
and attorneys' fees that may be assessed against an insurer by workers'
compensation judge. (1) If an insurer pays or submits a written
offer of payment of compensation under chapter 71 or 72 of this title
but controversy relates to the amount of compensation due, the case
is brought before the workers' compensation judge for adjudication of
the controversy, and the award granted by the judge is greater than
the amount paid or offered by the insurer, a reasonable attorney's fee
and costs as established by the workers' compensation judge if the case
has gone to a hearing may be awarded by the judge in addition to the
amount of compensation.
(2) An award of attorneys' fees under subsection (1) may
only be made if it is determined that the actions of the insurer were
unreasonable. . . .

39-71-2907.
Increase in award for unreasonable delay or refusal to pay.
(1) When payment of compensation has been unreasonably delayed or refused
by an insurer, either prior or subsequent to the issuance of an order
by the workers' compensation judge granting a claimant compensation
benefits, the full amount of the compensation benefits due a claimant
between the time compensation benefits were delayed or refused and the
date of the order granting a claimant compensation benefits may be increased
by the workers' compensation judge by 20%. The question of unreasonable
delay or refusal shall be determined by the workers' compensation judge,
and such a finding constitutes good cause to rescind, alter, or amend
any order, decision, or award previously made in the cause for the purpose
of making the increase provided herein.

In Mintyala
v. State Compensation Insurance Fund, 276 Mont. 521, 527, 917 P.2d
442, 445-446 (1996), the Montana Supreme Court held that "the penalty
provision is available to the claimant from the moment the insurer's delay
in payment becomes unreasonable."

¶58 CNA failed
to act on the demand for payment of the medical bills for over three years.
During that time it ignored repeated demands for payment of the bills.
When seeking independent medical examination (IME) evaluations, it failed
to ask for a comprehensive review of medical information to determine
whether claimant's hospitalization was caused in whole or part by his
asbestosis, rather it limited its questions to the relationship of cardiomyopathy
to asbestosis. When requesting Dr. Pistorese to evaluate the case, CNA's
attorneys failed to supply him with complete records, leading him to erroneously
conclude that the claimant suffered from ischemia.

¶59 Dr. Pistorese
did provide testimony which supports CNA's position that claimant's heart
condition and hospitalization were unrelated to his asbestosis. However,
while conflicting medical opinions ordinarily raise issues of fact which
are appropriately submitted to the Workers' Compensation Court for resolution,
the fact that the insurer has obtained an IME opinion supporting its denial
does not preclude a finding that its denial was unreasonable. An insurer
must fairly and reasonably evaluate all facts and opinions with respect
to medical issues.

¶60 In evaluating
conflicting medical opinions, an insurer must consider the expertise and
qualifications of the physicians providing the opinions and must consider
the rule requiring that deference be given the treating physician's opinions.
In Wall v. Nat'l Union Fire Ins. Co., 1998 MTWCC 11, I found
the insurer's denial of medical benefits unreasonable where the treating
physician not only treated the claimant but had far greater expertise
regarding the medical condition which was at issue.

¶61 It is well
established that a treating physician's opinions are entitled to greater
weight than those of a non-treating physician.

It has been
a long-standing rule that while not conclusive, the treating physician's
opinions are entitled to "greater evidentiary weight" than the testimony
of non-treating physicians. Kloepfer v. Lumbermen's Mutual Casualty
Co., 276 Mont. 495, 498, 916 P.2d 1310, 1312 (1996). At minimum,
the rule requires this Court to defer to the treating physician where
the evidence is evenly balanced. Key v. Liberty Northwest Ins. Co.,
2001 MTWCC 53, ¶ 30.

McCauley,
supra., ¶ 41. In this case, Dr. Whitehouse was the claimant's treating
physician. As I noted earlier, CNA's attorney asserted at trial that Dr.
Whitehouse was not claimant's treating physician in this case, rather
the cardiologist who examined claimant was. That argument, which I have
already characterized as frivolous, is in itself evidence of unreasonableness.
While the cardiologist also became a treating physician, Dr. Whitehouse
was the admitting physician for claimant's July 1999 hospitalization and
followed the claimant during the hospitalization and thereafter. As a
pulmonologist treating Libby asbestosis cases, he diagnoses and treats
related conditions, including cor pulmonale, and seeks the help of other
specialists where appropriate. Not only did CNA disregard Dr. Whitehouse's
role as a treating physician and the treating physician rule as in Wall,
supra., it failed to give due regard to his greater expertise in
treating Libby asbestosis cases, including cor pulmonale.

¶62 CNA also
failed to give proper consideration to the tenuous nature of the foundation
for Dr. Pistorese's opinion. Dr. Pistorese's opinion was based on the
July 14, 1999 echocardiogram, especially the ejection fraction of the
left ventricle. The quality of the exam was characterized as only "fair"
by the cardiologist. Dr. Whitehouse's testimony, which was unrebutted,
questioned the validity of the exam. Moreover, Dr. Pistorese could not
explain the remarkable improvement in the claimant's cardiac function
following the first echo.

¶63 In summary,
CNA's delay in responding to the request for benefits was unreasonable.
Its failure to request its medical consultants to consider the ultimate
question of the relatedness of the July 1999 hospitalization was unreasonable.
Its failure to provide Dr. Pistorese with complete, relevant medical records
was unreasonable. Its ultimate denial of benefits was unreasonable.

JUDGMENT

¶64 The medical
bills set forth in Exhibit 15 totaling $24,301.82 are causally related
to the claimant's asbestosis. CNA is liable for those bills and shall
promptly pay them in accordance with fee schedules.

¶65 CNA shall
pay the claimant a penalty of twenty percent of the medical bills in question.

¶66 CNA shall
pay the claimant's attorney his attorney fees in an amount to be determined
by the Court in further proceedings.

¶67 CNA shall
pay the claimant his costs in an amount to be determined by the Court
in further proceedings.

¶68 This JUDGMENT
is certified as final for purposes of appeal.

¶69 Any party
to this dispute may have twenty days in which to request a rehearing from
these Findings of Fact, Conclusions of Law and Judgment.

DATED in Helena, Montana,
this 10th day of November, 2004.

(SEAL)

/s/ Mike
McCarterJUDGE

c: Mr. Tom L. Lewis
Mr. David M. Sandler
Submitted: July 13, 2004

1.
The lungs are beneath the ribs and are over (cover) the heart, which
is posterior to the lungs.

2.
In the case of Libby asbestosis, the pleura surrounding the lungs
is thickened.

39-72-704. Medical
and hospital expenses. In addition to the compensation provided
by this chapter, an employee who becomes either totally or partially
disabled from an occupational disease is entitled to receive for treatment
of the occupational disease, without limitation as to length of time
or dollar amount, reasonable medical services, hospitalization, medicines,
and other treatment approved by the department.

The reference to the "department"
is to the Department of Labor and Industry.

5.
CNA has not challenged the reasonableness of the medical expenses,
only the relatedness of the expenses to claimant's asbestosis.